J-S81027-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL LEE ODOM 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1269 MDA 2018

Appeal from the Judgment of Sentence Entered June 29, 2018

In the Court of Common Pleas of Adams County Criminal Division at 

No(s): CP-01-CR-0000338-2017

BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED APRIL 12, 2019

Appellant, Michael Lee Odom, appeals from the Judgment of Sentence 

entered in the Adams County Court of Common Pleas on June 29, 2018, 

following his jury conviction of one count each of Fleeing or Attempting to 

Elude Police Officers, Terroristic Threats, Harassment, and Driving Under the 

Influence of Alcohol,

1, 2

 After careful review, we affirm.

On March 7, 2017, Gettysburg police officers arrested Appellant and 

charged him with the above crimes arising from an incident that took place on 

around 2:00 AM that morning. The trial court, citing to the Notes of Testimony 

from Appellant’s April 12, 2018 trial, summarized the facts as follows:

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1 75 Pa.C.S. § 3733(a); 18 Pa.C.S § 2706(a)(1); 18 Pa.C.S. § 2709(a)(4); 

and 75 Pa.C.S. § 3802(a)(1), respectively. 

2 The court also convicted Appellant of related summary offenses.
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On March 27, 2017, at approximately 2:00 [AM], Officer Shannon 

Hilliard and Officer Kevin McDonald of the Gettysburg Borough 

Police Department were travelling westbound on York Street about 

a block from Lincoln Square in Gettysburg Borough when they 

observed a white sedan travelling through Lincoln Square at a high 

rate of speed. Both officers made a determination that the vehicle 

was speeding. Officer McDonald activated emergency lights and 

increased his speed in an attempt to catch up to the white sedan, 

which appeared to increase its speed when the Officers pulled up 

behind it. The Officers followed the white sedan north on Carlisle 

Street to the intersection with Railroad Street, which has railroad 

tracks intersecting Carlisle St[reet]. 

The Officers observed the white sedan, due to its speed, go 

airborne as it drove over the railroad tracks. Officer McDonald 

initiated emergency sirens.

The white sedan continued north on Carlisle Street to the 

intersection with Water Street where Officers observed the vehicle 

travel through the steady red traffic signal without applying 

brakes. Officer Hilliard testified the white sedan’s speed was 

around 40-45 mph at this point. 

After crossing Water Street, the white sedan swerved over the 

double yellow line into the oncoming traffic lane, returned to its 

lane of travel, overcorrected and crossed into the parking lane. 

The white sedan stopped several car lengths before the 

intersection of Carlisle Street and Lincoln Avenue.

Officer Hilliard approached the passenger’s side of the white 

sedan, where he observed Appellant in the driver’s seat. 

Appellant’s vehicle accelerated to the intersection of Carlisle 

Street and Lincoln Avenue and made a right turn onto Lincoln 

Avenue. Officer Hilliard returned to the patrol vehicle and the 

Officers resumed pursuit onto Lincoln Avenue, where they lost 

sight of Appellant’s vehicle. Officers located Appellant’s vehicle in 

the parking lot of Smyser Hall shortly after turning east onto 

Lincoln Avenue and took Appellant into custody.

Both Officers observed Appellant’s clothes were soiled, he had 

bloodshot and glassy eyes, agape mouth, and a strong odor of an 

alcoholic beverage about his person. Appellant was taken to 

Gettysburg Hospital for a blood draw. Appellant loudly and 

repeatedly refused a blood draw, both during the drive to the 

hospital and at the hospital. The Officers transported Appellant 

back to the Gettysburg Police Department. 
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While at the Police Department, Appellant made numerous threats 

to Officer Hilliard and Officer McDonald. Appellant also admitted 

to drinking and driving. Officer Hilliard and Officer McDonald both 

testified that Appellant was under the influence of alcohol to a 

degree which rendered him incapable of safe driving.

Trial Ct. Op., 9/7/18, at 1-3 (citations omitted; paragraph breaks inserted).

On April 12, 2017, the jury convicted Appellant of the above charges. 

Following its consideration of a Pre-Sentence Investigation Report and the 

parties’ arguments, on June 29, 2018, the trial court sentenced Appellant to 

two consecutive terms of 15 to 30 months’ incarceration for his Fleeing or 

Attempting to Elude Police Officers and Terroristic Threats convictions.

3

 

Appellant did not file a timely Post-Sentence Motion.

On July 26, 2018, Appellant file a pro se Notice of Appeal. On August 

8, 2018,the court appointed Thomas R. Nell to represent Appellant.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following five issues on appeal, which we have 

reordered for ease of disposition:

1. Did the trial [c]ourt err in denying [Appellant’s] request for jury 

instructions regarding transitory anger being a defense in the 

count of terroristic threats?

2. Whether the evidence was sufficient as a matter of law to 

establish guilt[] beyond a reasonable doubt to the charge of 

fleeing and eluding?

3. Whether the evidence was sufficient as a matter of law to 

establish guilt[] beyond a reasonable doubt to the charge of 

terroristic threats?

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3 Appellant’s Driving Under the Influence and Harassment convictions merged 

for sentencing purposes.
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4. Did the trial court err when it found [Appellant] guilty, when 

the verdict was against the weight of the evidence in regard to 

the count of fleeing and eluding?

5. Did the trial court err when it found [Appellant] guilty, when 

the verdict was against the weight of the evidence in regard to 

the count of terroristic threats?

Appellant’s Brief at 7.

In his first issue, Appellant asserts that the trial court erred in denying 

his request for a jury instruction “regarding transitory anger being a defense 

in the count of terroristic threats.” Appellant’s Brief at 12-13. However, 

Appellant does not identify the place in the record where he made this request. 

Further, he fails to specify the language of the instruction he requested and 

what instruction, if any, the court gave in response to his request. Appellant 

utterly fails to support his contention with reference to the relevant places in 

the record where he preserved this issue, as required by Pa.R.A.P. 2119(c) 

(stating if reference is made to any matter appearing in the record, argument 

must set forth place in the record where the matter appears). Accordingly, 

Appellant has waived this issue. Commonwealth v. Williams, 980 A.2d 

667, 671 (Pa. Super. 2009) (stating defendant waived argument on appeal 

where he failed to indicate in his brief where the issue was preserved in trial 

court). 

In his second issue, Appellant challenges the sufficiency of the 

Commonwealth’s evidence in support of his Fleeing or Attempting to Elude 

Police Officers conviction. Appellant’s Brief at 14-15. Appellant does not, 

however, explain in his Brief to this Court how the Commonwealth’s evidence 
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was deficient, or cite the statutory language of the offense or any case law in 

support of his claim.

Rule of Appellate Procedure 2119(a) requires a properly developed 

argument for each question presented. This requires, among other things, a 

discussion of and citation to authorities in the appellate brief and the principles 

for which Appellant has cited them. See Pa.R.A.P. 2119(a), (b). Failure to 

conform to the Rules of Appellate Procedure results in waiver of the underlying 

issue. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262 (Pa. Super. 

2014) (en banc); see also Commonwealth v. Clayton, 816 A.2d 217, 221 

(Pa. 2002) (“[I]t is a well settled principle of appellate jurisprudence that 

undeveloped claims are waived and unreviewable on appeal.”). In light of 

Appellant’s failure to develop this claim in conformance with our Rules of 

Appellate Procedure, we conclude it is waived.

In his third issue, Appellant claims that the Commonwealth’s evidence

was insufficient to sustain his conviction of Terroristic Threats, 18 Pa.C.S. §

2706(a)(1). In particular, he argues that he lacked the requisite “intent to 

terrorize” the police officers because his statements were “merely the product 

of an agitated and angry state of mind.” Appellant’s Brief at 21. In support 

of this claim, Appellant avers that the record evidence demonstrated that “his 

conduct expressed transitory anger rather than a settled purpose to carry out” 

the threatened actions. Id. at 18-19.

“A claim challenging the sufficiency of the evidence is a question of law.” 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review 
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claims regarding the sufficiency of the evidence by considering whether, 

viewing all the evidence admitted at trial in the light most favorable to the 

verdict winner, there is sufficient evidence to enable the fact-finder to find 

every element of the crime beyond a reasonable doubt.” Commonwealth v. 

Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and 

citations omitted). “Further, a conviction may be sustained wholly on 

circumstantial evidence, and the trier of fact—while passing on the credibility 

of the witnesses and the weight of the evidence—is free to believe all, part, or 

none of the evidence.” Id. “In conducting this review, the appellate court 

may not weigh the evidence and substitute its judgment for the fact-finder.” 

Id.

The crime of making a terroristic threat is defined by statute as follows: 

“[a] person commits the crime of terroristic threats if the person 

communicates, either directly or indirectly, a threat to [] commit any crime of 

violence with intent to terrorize another. . . .” 18 Pa.C.S. § 2706(a)(1). 

For a defendant to be convicted of Terroristic Threats, 

“the Commonwealth must prove that 1) the defendant made a 

threat to commit a crime of violence, and 2) the threat was 

communicated with the intent to terrorize another or with reckless 

disregard for the risk of causing terror.” Commonwealth v. 

Tizer, 454 Pa. Super. 1, 684 A.2d 597, 600 (1996). “Neither the 

ability to carry out the threat, nor a belief by the person 

threatened that the threat will be carried out, is an element of the 

offense.” In re J.H., [2002 PA Super 108], 797 A.2d 260, 262 

(Pa. Super. 2002). “Rather, the harm sought to be prevented by 

the statute is the psychological distress that follows from an 

invasion of another’s sense of personal security.” Tizer, 684 A.2d 

at 600.
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Commonwealth v. Beasley, 138 A.3d 39, 46 (Pa. Super. 2016) (citing

Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa. Super. 2003)).

The Official Comment to Section 2706 explains: “The purpose of th[is]

section is to impose criminal liability on persons who make threats which 

seriously impair personal security or public convenience. It is not intended by 

this section to penalize mere spur-of-the-moment threats which result from 

anger.” 18 Pa.C.S. § 2706, Comment. Thus, the real issue is whether, based 

on the totality of the circumstances, the “Commonwealth presented sufficient 

evidence to establish the required mens rea, not whether [Appellant] made 

the statements in the context of a heated discussion. Being angry does not 

render a person incapable of forming the intent to terrorize.” 

Commonwealth v. Walker, 836 A.2d 999, 1001 (Pa. Super. 2003). See 

Reynolds, supra at 730 (examining the totality of the circumstances).

Here, Appellant maintains his statement was the result of “transitory 

anger” and therefore is not subject to criminal liability. In addition, Appellant 

favorably compares his case to Commonwealth v. Kidd, 442 A.2d 826 (Pa. 

Super. 1982), and Commonwealth v. Sullivan, 409 A.2d 888 (Pa. Super. 

1979).

Kidd involved a defendant arrested for public drunkenness. As he was 

being treated in the emergency room, and with his hands handcuffed behind 

his back, the defendant shouted obscenities and yelled that he was going to 

kill the police, specifically saying he would machine gun them if given a 

chance. 442 A.2d at 827. On appeal, this Court held there was “insufficient 
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evidence that appellant, by his acts, intended to place the officers in a state 

of fear that agitates body and mind.” Id. See also Commonwealth v. 

Walker, supra at 1002 (“The defendant’s statements in Kidd exemplify the 

sort of hyperbole from which the jury cannot properly infer, beyond a 

reasonable doubt, either an intent to terrorize or reckless disregard of the risk 

of causing terror.”). 

In Sullivan, the defendant telephoned the State Police Barracks, asking 

a trooper be sent to investigate his claim that the Sheriff of the County had 

assaulted the defendant’s father. Frustrated by the delay in the response, the 

defendant telephoned the barracks again and said, “If you don’t want to send 

anybody down here, I have a .30-30 rifle and I’ll come up there and blow that 

son of a bitch’s head off.” 409 A.2d at 888-89. The next morning the 

defendant encountered the Sheriff on the street by chance and during a loud 

verbal confrontation the defendant again threatened to kill the Sheriff. Id. at 

889. The defendant was convicted of two counts of Terroristic Threats. On 

appeal, this Court reversed, finding that the defendant’s threats were the 

product of his angry and agitated emotional state of mind, and that the record 

contained “no evidence that appellant, by his acts, intended to put the Sheriff 

into a state of ‘extreme fear or fear that agitates body and mind[,]’ ..., and 

thus did not possess the ‘intent to terrorize’ required for conviction under 

section 2706.” Id. at 889-90 (citation omitted).

Here, the trial court concluded that the testimony of the officers 

regarding the threats made by Appellant, and the surrounding circumstances, 
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were sufficient to support the jury’s guilty verdict. The court explained as 

follows:

Officer McDonald and Officer Hilliard both testified that while 

Appellant was in custody at the Gettysburg Borough Police 

Department, Appellant made numerous threats on their lives. 

Officer McDonald testified, “He (referring to Appellant) said he will 

fucking kill us. I can’t remember verbatim what he said, but he 

said he knows where—he’ll bail out of jail, no problem, he has 

money to do that, he’ll find us and where we live.” Officer 

McDonald further testified that these threats were repeated 

numerous times over the course of an hour. Officer Hilliard 

testified that Appellant told him “I’m going to fucking kill you” 

numerous times. Officer Hilliard also testified that Appellant said 

that when he (Appellant) bailed out of jail, he was going to find us 

where we live and he wasn’t going to fight the charges, but he 

was coming to fight us. These threats were repeated at least a 

dozen times over an hour.

Trial Ct. Op. at 7-8 (citation to the Notes of Testimony omitted).

In sum, the court found that, given the numerosity and length of time 

over which Appellant made his threats, they did not constitute a mere “random 

spur of the moment emotional outburst resulting from anger,” but rather were 

the kind of threats the Legislature intended to criminalize. See In re B.R., 

732 A.2d 633, 638 (Pa. Super. 1999) (citing 18 Pa.C.S. § 2706 Comment and 

explaining that Section 2706 is not intended to criminalize statements which 

are “spur of the moment threats which result from anger”).

Following our review, we agree with the trial court that the 

Commonwealth presented sufficient evidence from which the jury could 

reasonably find that the Commonwealth had proven the requisite elements of 

the Terroristic Threats charge. The evidence elicited at trial, when viewed in 
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the light most favorable to the Commonwealth as verdict-winner, indicates

that Appellant’s repeated threats, unlike the isolated statements made by the 

defendants in Kidd and Sullivan, were not spur of the moment. Rather, 

Appellant’s threats were part of a series of at least a dozen threatening 

statements directed towards the police officers over a period of an hour. In 

light of the testimony that Appellant made multiple threats over a period of 

an hour, it was reasonable for the jury to conclude that Appellant evinced an 

intent to terrorize the officers. Appellant is, therefore, not entitled to relief on 

this issue.

In Appellant’s fourth and fifth issues, he challenges the weight of the 

evidence. Before we address the merits of Appellant’s claims, we consider 

whether Appellant has preserved them.

Pursuant to the Pennsylvania Rules of Criminal Procedure, a weight of 

the evidence claim must be “raised with the trial judge in a motion for a new 

trial: (1) orally, on the record, at any time before sentencing; (2) by written 

motion at any time before sentencing; or (3) in a post-sentence motion.” 

Pa.R.Crim.P. 607.

Our review of the record indicates that Appellant failed to raise his 

challenges to the weight of the evidence either orally or in writing at or before 

sentencing, or in a Post-Sentence Motion. Thus, we find these issues waived.

Judgment of Sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/12/2019